A RESEARCH TOWARDS FULLFILLMENT OF

VIII SEMESTER BBA LLB(HONS) INTEGRATED COURSE

SUBMITTED TO – SOA NATIONAL INSTITUTE OF LAW

SUBJECT- LAW OF EVIDENCE-II
UNDER THE GUIDANCE OF- MR. AKASH TRIKHA
TOPIC- BURDEN OF PROOF IN INDIAN EVIDENCE ACT

SUBMITTED BY: SHIVAM SOLANKI

BBA LLBSEC A
REGN NO – 1841801035
BATCH – 2018 – 23
5 YEARS INTEGRATED BBA LLB(A)
SEMESTER- VIII
ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher (MR. AKASH TRIKHA)
who gave me the golden opportunity to do this wonderful assignment which also helped me
in doing a lot of Research and i came to know about so many new things I am really thankful
to him.

Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing
this assignment within the limited time frame.

SHIVAM SOLANKI
5 years Integrated BBA LLB
SEC A (8TH Semester)
Reg.No. –1841801035
S‘O’A National Institute of Law
(SNIL) S‘O’A University,
Odisha, India
INTRODUCTION

The term ‘Burden of Proof’ means when a person states something and considers it to be fact
he or she needs to prove the statement made by him. This is an important concept integrated
in the Indian Evidence Act, 1872. The concept of burden of proof is explained in Chapter VII
of the Indian Evidence Act, 1872.
The Indian Evidence Act does not define the term "burden of proof." However, in simple
terms, the burden of proof refers to the legal requirement or responsibility of the parties to
establish the facts that will assist the court in reaching a decision in their favour. Therefore,
the duty to prove a fact in a lawsuit is known as the Burden of Proof. The requirements under
the burden of proof are covered in Chapter VII of the Indian Evidence Act.

Under the Indian Evidence Act, 1872, sections 101 to 103 deal with the burden of proof in
general, whereas sections 104 to 106 deal with the situation where the burden of proof is
placed on a specific individual. The concepts of Onus Probandi and Factum
Probans include the underlying principles of the burden of proof. Onus Probandi is a general
rule that requires a person asserting the positive to prove it. A person who maintains an
affirmative stance has the onus probandi. The onus probandi is on the party seeking to
strengthen his case with a specific fact that he is said to be aware of.

Factum Probans and Factum Probandum

Order 6, Rule 2 of the Civil Procedure Code, 1908, states that the pleading shall only contain
important facts that must be shown in a concise form Evidence is a relative term that refers to
a connection between two facts: the fact in dispute (factum probandum), or statement to be
proven, and the evidential fact (factum probans), or material corroborating the proposition.
The former is inherently hypothetical; the latter is advanced as fact in order to persuade the
court that the former is likewise true.

According to the fundamental premise of criminal law, the accused should be deemed
innocent unless proven guilty beyond a reasonable doubt. The prosecution has the first
burden of proving that the accused has committed a crime in a criminal proceeding.

In the case of the State of Rajasthan vs Sher Singh, 1994, it was held that it was unlawful to
examine defence evidence before prosecution evidence in criminal proceedings.
In criminal trials, the prosecution bears the burden of proof. The prosecution must show
beyond a reasonable doubt that the defendant is guilty until the prosecution proves otherwise.
The court shall assume that the accused is innocent. It was held in the case of Md.
Allmuddin v. State of Assam, 1992, that the defence version may even be false,
nevertheless, the prosecution cannot derive any advantage from the falsity or other infirmities
of the defence version, so long as it does not discharge its initial burden of proving the case
beyond all reasonable doubt.
In Jarnail Singh v. the State of Punjab, AIR 1996, it was established that if the prosecution
fails to produce sufficient evidence to meet their burden, they cannot rely on the evidence
presented by the accused in support of their defence.

In criminal trials, the prosecution bears the duty of establishing the defendant's guilt, and they
must do it beyond a reasonable doubt. The plaintiff has the burden of proving his case by a
majority of the evidence in civil cases. If the prosecution fails to prove the accused's guilt
beyond a reasonable doubt, the accused is entitled to an acquittal. This was determined in the
case of Ouseph v. State of Kerela, which was decided in 2004.
PROVISIONS RELATED TO BURDEN OF PROOF
Section 101 burden of proof
According to this section, any party who wants to assert a judgment in his favour from the
court. He must prove his case with the accrued evidence. As per this section, the party must
produce appropriate and accrue evidence based on reliability, which any doubt criteria cannot
cover.
Thus a party who desires any legal liability or right dependent on fact; must be proven with
evidence. Also, a claim must be proven by adducing proof based on the fact of the claim.
• If Ram is of the opinion that Shyam has committed a crime and that he must be
punished for the same, then it is upon him to prove that Shyam has committed the said
crime.
• Rita is of the opinion that a certain land belongs to her but Sita has occupied the same
stating it is her land. If Rita decides to file a suit and obtain a decree stating that the
land belongs to her then she is required to prove the same to the court. Hence, here the
burden of proof is on Rita.

Section 102 burden of proof lies

As per this section, the burden of proof always lays on the party who will stand on the fact.
Suppose either of the parties produces no evidence. Thus, the burden of proof lies on the
party who relies upon fact and not on the party who denied it.
Here the common question comes to our mind is, which party bears the burden of proof? In
the suit proceeding, the burden of proof can be laid only on the party who is firm and cannot
be sifted on that party who denied the fact.
In the case of Ram Raja Ram vs Dhuba Charan Jena, (A.I.R 1982 Ori 264), the Orissa
high court held that the party who claimed consideration must be proof as per section 118 of
the Negotiable instrument Act.
• Sunil has filed a case stating that the land which is in possession of Anil belongs to
him. Here, the burden of proof is on the one who will suffer if he/she does not prove
the fact. Hence, if Sunil does not prove that the land belongs to him then Anil will
continue to have possession of the land and Sunil will suffer by losing his land.

Section 103, the burden of proof as to a particular fact

According to this section, the burden of proof is on the party who wants the court to believe
and react to a fact. In other words, we can say that the burden of proof is laid only on that
party that explains the Fact, which is required to prove the same in the court of law.
Suppose Mr. Ramesh wants to prove that when someone murdered his neighbour Mr. Paresh,
he was not present there. But he was at his uncle’s house. In that situation, Mr. Ramesh must
prove that he was present at his uncle’s house.
 • Chirag says that at the time of his neighbour’s murder he was not at home and was at
his uncle’s place. In this case it is upon Chirag to prove that he was at his uncle’s
place.

Section 104 of the Evidence Act

This section says that anyone who wants to prove the Fact must bear the burden of proving it
in terms of admissible evidence, which confirms the Fact. In other words, suppose a person
who wants to produce some evidence to prove some event will be responsible for proving
both the event and evidence.
When a person wants to admit one Fact that depends upon another fact, that is required to
prove the Fact and subsequent Fact with evidence.
• Nita states that Anita has made a dying declaration. In order to prove that Anita has
made a dying declaration Nita will have to prove that Anita is dead. Hence, the
burden of proof for both the fact lies on Nita.
• If Mr. A desired to prove that Mr. B gave him a dying declaration before he died. In
that case, Mr. A has to be proved that Mr. B has died.
In Paramjeet Singh @ Pamma vs State of Uttarakhand, (AIR 2011 SC 200). The Supreme
court rightly observed that the more serious the crime, the stricter proof required in a criminal
trial when the burden of proof is on the prosecution.
In Basanta Gohain vs The State (1957 CriLJ 360), the Guwahati high court observed that
the prosecution’s burden is on proving the case against the accused.

What does section 105 say?

This section deals with the exceptions provided under the general exception of the Indian
penal code or any of the laws enforced. According to this section, the burden of proof may lie
on the accused when it falls under any exception criteria. If the accused’s defence that the
offense he committed existed as a circumstance and was not done with intent, he must be
proved that. When the guilt is proved, the burden of proof shifts to the accused person who
pleads defence under the exception. The well-settled principle of the law is that the accused
cannot be established guilty until the prosecution does not prove the same.
• Mr. Shetty is accused of murdering Mr. Gulati. Mr. Shetty pleads that it was not
murder but self-defence as Mr. Gulati was about to shoot him with his gun, then the
burden of proof is upon Mr. Shetty to prove that upon grave and sudden provocation
Mr. Shetty in his self-defence killed Mr. Gulati.

What does section 106 say?

This section deals with the principle of the law that; if a person states that he knows the Fact,
then such Fact has to be proved. That type of Fact especially comes under the knowledge of a
person. Thus, he has to prove it. Suppose an allegation was made against Mr. A that he is
traveling on a bus without a ticket. Now he has to prove that a ticket is having on him.
Section 106 promotes the idea of a fair trial where it becomes easy to prove all the possible
facts and have no burden to prove something that is impossible and benefit the accused. Also,
it provides the opportunity for the accused to rebut the presumption of facts which is derived
from the series of facts. However, it is noticed that the prosecution takes the disadvantage of
this provision and tries to run away from his responsibility to prove the legal burden.
The Supreme Court has clarified all the doubts arising out of this Section in the case of Ram
Gulam Chaudhary and Ors. v. State of Bihar (2001). It is held that all the positive facts
must be proven by the prosecution however, it is not responsible to prove negative facts that
something which is impossible or which is not within the knowledge of the party. Hence,
shifting of the burden is not a violation of any statute or the provision of law as it helps in the
establishment of truth which is important for a fair trial.
BURDEN OF PROOF IN CIVIL & CRIMINAL CASES
What is the burden of proof in Civil Cases?
When a person wants to file a lawsuit against another party, he should include the fact and
grievances of the case in the petition. Here the applicant party who files such a suit is called a
plaintiff, and another party against the lawsuit is filed called the defendant.
In the civil suit, the plaintiff has a burden of proof; he must have evidence of his case
according to facts and relevant evidence. He cannot lay the burden of proof on the defendant.
Moreso, he cannot take advantage of the weakness of the defendant. Even if the defendant
does not take appropriate defence from his side, then that is the plaintiff’s duty to prove his
case with the relevant facts and evidence of the suit.

What is the burden of proof in a criminal case?

The well-settled proposition of the law is that a person is always treated as innocent unless he
is not proved guilty. The burden of proof lies on the prosecution to prove to the court that the
accused committed a crime. And thus, he is liable to be punished.
The burden of proof also can be laid on the accused if he claims that he is innocent of the
crime. In the claim of exception of the crime, such burden of proof can be shifted upon the
accused. However, the heavy burden of proof is always upon the prosecution firstly; they
must prove the case without any reasonable doubt. The prosecution cannot discharge its duty
by way of the weakness of the accused; thus, without any substantial proof of a crime, the
court cannot convict the accused. Let’s see the provisions and principles that refer to the
burden of proof.

The provisions and principles of burden of proof

The two maxims have covered the principle of burden of proof; the first one is onus probandi
which is referred to as the burden of proof and the second one is factum probands which refer
to proving the Fact. In other words, we can say that when the burden of proof remains stable,
in that situation, it shifted from one party to another party to prove the liability of the Fact in
the appropriate case.
Thus, failing to prove the case by the prosecution with appropriate evidence, they cannot rely
on the evidence adduced by the accused of his defence.

Concept of Presumptions under the burden of proof

Presumptions are legal conclusions made by the court about the presence of particular facts.
Presumptions are an exception to the usual rule that the party that asserts the existence of
particular facts has the first burden of proof, but they eliminate this necessity. When certain
facts are believed to exist, the party in whose favour they are presumed to exist is relieved of
the burden of proof in that regard.

Documentary Evidence is subject to several presumptions. Presumptions may be divided into

three types: factual presumptions, legal presumptions, and mixed presumptions. When a
certified copy of an original document is presented to the court, the law presumes that the
copy is a genuine copy of the original evidence, according to Section 79 of the Act. The court
shall infer that a power of attorney issued before the court is by a real authorised person,
according to Section 85 of the Act.

The presumption of innocence is a legal notion stating that everyone is presumed innocent
unless proved guilty. Justice Thomas articulated the need of changing the perspective on this
idea in the case of State of West Bengal v. Mohd. Omar (2002). According to him, the
traditional approach of constantly placing the burden of evidence on the prosecution benefits
only the accused of horrific crimes and creates fatalities for society. When a prosecutor
successfully establishes specific facts of the case, the court must infer their existence and rely
on such circumstances. In other words, after the court is satisfied with the prosecution's case,
the burden of proof shifts to the accused since only the accused is aware of every occurrence
committed.
NEED FOR A CHANGE IN THE OUTLOOK OF PRESUMPTION OF
INNOCENCE
The presumption of innocence is a concept which means every person or an individual is
innocent until proven guilty. Justice Thomas in the case of State of West Bengal v. Mohd.
Omar (2002) has explained the need to change the outlook of this concept. According to
him, the traditional approach that the burden of proof will always lie upon the prosecution
would only benefit the accused of the heinous crimes and would create casualties for the
society. In such cases where the prosecutor is successful in proving certain facts of the case,
the court has to presume the existence of the facts and has to rely on such circumstances. In
other words, when the court is satisfied with the proof provided by the prosecution, then the
burden of proof shifts to the accused as it is observed that it is only the accused who knows
every incident that has been committed. This is also known as the reverse onus clause.
The above principle is laid down under Section 106 . According to this section, when any fact
is within the knowledge of any person, the burden of proving that fact is upon that person.
This does not relieve the prosecution from proving his burden beyond the reasonable doubt
but, would apply in cases where all the facts are proven by the prosecutor successfully and
can establish certain other important facts about which the accused have perfect knowledge
and has failed to put forth any explanation regarding such facts of the case that may help the
court to make appropriate judgment. Hence, this provision gives another chance to the
accused to defend himself by rebutting the presumption of the fact as such facts are within the
accused’s special knowledge.

Reasons for reversing the burden of proof with respect to development in

criminal cases
1. It helps in the prevention of offenses.
2. It provides protection to public welfare and maintains morality in society.
3. It promotes fair trials.
4. Reduces the burden of the prosecution to prove negative facts and also protects him
from the inconvenience caused by criminal cases.
5. It secures judicial expediency and economy.
6. It is declared to be constitutionally rational by Indian Courts.
DIFFERENCE BETWEEN BURDEN OF PROOF AND ONUS OF PROOF

WHAT IS ONUS OF PROOF?

The onus of proof is not defined anywhere in the Evidence Act, however, the provisions
relating to the same is provided under the Evidence Act and under many judgments given by
the court. Further, there is a general rule in the criminal law that it is the duty of the
prosecution to proof the burden in the case, however, when the accused calls upon to proof
the burden is an exception to the above generality, this we called that onus of proof falls on
accused to proof his case under an exception. The term ‘Onus of Proof’ is the burden to
produce actual evidence that can be shift from one to another party and such shifting is the
continuous process in the evolution of evidence. In the case of Jarnail Sen v. State of
Punjab, if the prosecution fails to adduce the satisfactory evidence to discharge the burden,
they cannot depend upon the evidence adduced by the accused person in support of their
defence.
If any person claims that the fact exists then the burden of proof lies on that person now it
would create confusion that on whom the burden of proof lies, therefore, Section 102 of
Evidence Act is clear on this part which provides that the burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given on either side.
For instance, A sues B for the land of which B is in possession, and which, as A asserts, was
left to A by the will of C, B’s father. If no evidence were given on either side, B would be
entitled to retain his possession. Therefore, the burden of proof is on A.

DIFFERENCE BETWEEN BURDEN OF PROOF AND ONUS OF

PROOF
The burden of proof lies upon the person who has to prove a fact and the burden remains
constant which never shifts while on other hand onus shifts from one to another, Addagada
Ragavamma & Anr v. Addagada Chenchaamma & Anr, Supreme Court held that there is
an essential distinction between the burden of proof and onus of proof, the first one is the
burden to prove the main contention of the party requesting the action of the court, while the
second one is the burden to produce actual evidence.
In the case of Anil Rishi vs. Gurbaksh Singh, it was observed that a distinction exists
between a burden of proof and onus of proof. The right to begin follows onus probandi. It
assumes importance in the early stage of a case. The question of onus of proof has greater
force, where the question is which party is to begin.
The term burden of proof has two different meaning one is Burden of proof establish a case
and the other burden to adduce evidence which is also known as the onus of proof, thus we
can say the onus is nothing but one part of Burden of proof which is unstable and has a
feature of shifting, in addition, the burden to proof is not same in the civil and criminal cases,
this deals differently in both the cases and the accused can be considered guilty when the
facts have been proved in the court of law.
CONCLUSION
The Indian Evidence Act, 1872 has explained the entire aspect in regard with burden of
proof. Burden of proof varies in civil and criminal matters as their needs and requirements.
The main principle is that a person who claims reliefs or any such orders or judgement from
court, the burden of proof falls on that person unless the law specifically requires the other
person to prove the fact’s existence or lead evidence. A person is deemed to be innocent until
he is proven guilty by the court. Therefore, it is upon the Plaintiff to prove that the person has
committed the offense.
Recently, the courts are receiving evidence majorly in electronic form. The sections are yet
not that clear upon burden of proof with regards to such electronic evidence and proving the
authenticity of such electronic evidence produced in the court.
The concept of burden of proof is of broader value especially when it comes to the
prosecution. There have been two different stages. One in which the prosecution has to prove
the offense and the other in which the accused has to prove the general exceptions, this has
increased the burden on the prosecution. The prosecutor has to prove the offense beyond
reasonable doubt and also has to make sure that the case does not fall within the general
exceptions. It becomes more difficult in criminal cases. This is due to the Indian judiciary
system that follows the principle of presumption of innocence as the degree of punishment in
criminal cases is more severe.
In our criminal justice system, there are many cases that have not ensured successful
conviction. As per the experts, it is due to the traditional approach by the judges on the
concept of presumption of innocence and requirement to prove mental element. Therefore,
the need was found to reverse the trends which are not violative to any provision. However, it
is important to ensure that these trends should not lose the credibility and reputation of the
Judges as impartial functionaries.
BIBLIOGRAPHY
✓ https://lawblog4u.in/the-concept-of-burden-of-proof-under-the-evidence-act/
✓ https://blog.ipleaders.in/burden-proof-criminal-cases-changing-trends-supreme-court-
india
✓ https://www.legalserviceindia.com/legal/article-7916-the-concept-of-burden-of-
proof.html
✓ Indian Evidence Act